The orphan works aspects of the Google Book Search settlement are analyzed with respect to international treaties on copyright. We argue that the exploitation of orphan works can only be permitted under some exception or limitation to exclusive rights. However, exceptions or limitations have to satisfy the constraints of the three-step test, and we further argue that the proposed settlement does not, since it does not take into account new models of exploitation of works, such as open access, that have become "normal" in the digital world. This analysis is then extended to non-orphan in-copyright works, for which the opt-out solution of the settlement agreement conflicts with the no-formalities requirement of the Berne Convention, taking into account the historical and practical intent of this requirement. We also show that, unless they are illegitimately granted the right to enforce payment on orphan and unregistered works - and this could undermine the legitimacy of copyright itself with the public - the parties to the settlement will have a vested interest in limiting access to the searchable on-line Books Database identifying books, thus severely curtailing its usefulness.
also available at http://www.datcha.net/ecrits/liste/orphan-gbs.pdf
Redistributing this work, or a derived work, to a third party requires keeping the same license, without any further constraint or restriction other than this clause, expressed or implied, related or not to this redistribution. For example, in case of inclusion in a database or collection, the owner or the manager of the database or the collection renounces any right related to this inclusion and concerning the possible uses of the document after extraction from the database or the collection, whether alone or in relation with other documents.